What a Fourth of July surprise the Hamdan decision was for Americans and their legitimate, moral fight against terrorism. The Supreme Court has ruled that captured jihadists should have the same protections as members of our own military have in courts martial, and that the military commissions established to deal with terrorists are illegal. They have even gone so far as to say the Geneva Conventions apply to al Qaeda and that the executive branch has overstepped its bounds.
In fact, the branch of government that has gotten too strong is the judicial branch. Nevertheless, the Court’s usurpation of the president’s prerogative to decide what sorts of courts terrorists will face is beside the point. As a matter of constitutional and international law, such detention and employment of military commissions is lawful. However, maintaining international support for and ensuring domestic consensus on fighting the global war demands we look for alternatives as to how best to detain and adjudicate captured jihadists. Regardless of the Court’s decision in Hamdan, it is the implementation of these commissions that has failed, and they have not achieved what they were intended to.
One unintended consequence of this disastrous opinion is that the Court has now forced the opponents of Guantanamo Bay to offer legitimate solutions. Of all the possibilities, the best solution for both the immediate needs of the five hundred detainees in Gitmo and the inevitable future cases is the creation of a National Security Court system.
The Global War on Terror has created ambiguities in both the laws of and the strategies employed in this new sort of armed conflict. The asymmetric threat of international terror, the lack of a nation-state to fight against, the relative problems with the Military Commissions at Guantanamo Bay, allegations of torture, and the recent constitutional issues surrounding wiretap efforts of the National Security Agency all highlight the lack of appropriate laws to govern this new conflict. Nowhere is this ambiguity more evident than in the United States’ handling of detainees.
The enemies in the Global War on Terror are men and women who fight not for a nation but for an ideology. They do not wear standard military uniforms and, as a matter of doctrine, flout the laws of war. These new warriors have created extreme difficulties since they are not, de jure belli, prisoners of war (regardless of what Hamdan has asserted), and thus the Geneva Conventions simply do not apply to them. Adjudicating their status and crimes has become increasingly chaotic.
It initially appeared, especially considering Ex Parte Quirin, that the military tribunals (currently referred to as military commissions by the Bush administration) would provide the appropriate venue for handling the prosecution of the detainees. But now, over four years later, there has not been a completed prosecution. More than five hundred detainees remain in Guantanamo Bay, and another 450 are allegedly are being held in Afghanistan.
As this problem escalates, a new approach (rather than a reconstruction of the commissions) must be entertained by U.S. policy makers. Our own federal courts system, the standard courts-martial system, and other traditional methods simply will not suffice. A healthy, bipartisan debate about how to deal with these prisoners is critical. This is a new war, one that mixes law enforcement and warfare, and does not fit neatly in either regime. A national-security court apparatus that reflects this must be statutorily created so that justice will be achieved both in reality and in appearance
Clearly, many issues need to be hammered out before this can happen. A commission should be established to create such a court system. The current thrust should simply be to inject new ideas into the national debate over the proper handling of detainees. Attacks on the existing system, without any suggestions on how to improve it, are not helpful.
Generally speaking, the court would be a hybrid of the military commissions and our own federal trial system, reflecting the nature of the war. The jihadist would be afforded limited rights, including the right to counsel; to be detained and tried on military bases within the United States; and to have hearings with observers present (e.g., Amnesty International, ICRC, Human Rights Watch). The death penalty would be considered a lawful punishment; the Department of Justice would provide prosecutors and the overall administration of the program,
The creation of a national-security court, a natural maturation of the military commissions, affords an opportunity for U.S. policymakers to respond forcefully and effectively to calls, both domestically and internationally, for a way out of the Guantanamo. The Hamdan decision has indeed pushed us in this direction. Policy makers must now come up with fresh new ways to look at the proper detention and adjudication of the jihadists. It is time to regain the initiative and to reaffirm our leadership in the humane prosecution of those who would undermine the ideals of democracy.
– Glenn Sulmasy is an associate professor of law at the U. S. Coast Guard Academy and an expert in national-security law. He is on sabbatical at Boalt Hall School of Law in Berkeley, Calif. for the 2006-2007 academic year. The views expressed herein are his own.